ROBERT F. NIENHOUSE v. DONNA K. NIENHOUSE
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RENDERED:
February 18, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000324-MR
ROBERT F. NIENHOUSE
APPELLANT
APPEAL FROM SPENCER CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 03-CI-00217
v.
DONNA K. NIENHOUSE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE:
Robert F. Nienhouse has appealed from the
Spencer Circuit Court’s order denying his petition to enforce
the portion of a decree relating to sibling visitation entered
by a court in Cook County, Illinois.
We affirm.
Robert and Donna K. Nienhouse were married in Cook
County, Illinois on December 9, 1989.
During their marriage,
Robert and Donna adopted a son, Carlton, born December 15, 1982.
Catherine, a child of the marriage, was born on December 10,
1990.
In 1995, Donna filed a Petition for Dissolution of
Marriage in the domestic relations division of the circuit court
of Cook County, Illinois.
Caroline, was born.
On March 19, 1997, another daughter,
By an order entered shortly after her
birth, Robert was declared not to be Caroline’s father.
However, Robert sought custody of all three children.
On October 7, 2002, the Illinois court entered an
order following a pre-trial conference providing as follows:
Caroline and Catherine shall be together
Sundays from 1:00 p.m. to 5:00 p.m. at Norma
Alencastro’s home. Donna shall drop off
Caroline at 1:00 p.m. and pick her up at
5:00 p.m. Robert shall drop off Catherine
at 12:45 p.m. and pick her up at 5:15 p.m.
Neither parent shall enter the home and they
shall both leave Ms. Alencastro’s
immediately after pick up and drop off.
This order appears to have been drafted by Donna’s counsel.
The
following February, Robert and Donna entered into a trial
stipulation and agreed order, which provided that Robert would
have sole custody of Catherine and that visitation between
Catherine and Donna was reserved.
The agreed order also
provided for a course in mother and daughter conjoint counseling
for Donna and Catherine.
held on April 4, 2003.
A trial on the contested issues was
During that hearing, Donna acknowledged
the agreement regarding visitation between Caroline and
Catherine, and her attorney indicated that the agreement was
going to become a part of the final judgment.
On May 16, 2003, the Illinois court entered a Judgment
for Dissolution of Marriage.
Pursuant to the earlier
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stipulation, Robert was awarded sole custody of Catherine.
Also
incorporated into the judgment was the October 7, 2002, order
providing for sibling visitation on Sundays between Caroline and
Catherine.
In the judgment, the Illinois court indicated that
it retained jurisdiction to enforce the provisions of the
judgment.
Later that May, Robert filed a petition to hold Donna
in indirect civil contempt for her violation of the judgment of
dissolution based upon the lack of sibling visitation.
On
August 1, 2003, the Illinois court entered an order indicating
that Donna and Caroline had relocated to Kentucky and ordered
Jacalyn Birnbaum, the court-appointed attorney for Catherine, to
assess conditions for sibling visitation in Louisville on August
8th.
The Illinois court then indicated that it was taking the
issue of its jurisdiction over Caroline under advisement and
that it would rule on that issue on August 20th.
Several
motions, including a Petition for Rule to Show Cause, were
continued to the same date.
The certified record before this
Court does not appear to contain an order specifically related
to the August 20, 2003, court date.
However, later orders
reflect that Donna was ordered to appear before the Illinois
court on October 2, 2003, to show cause why she should not be
held in contempt for failing to comply with the order regarding
sibling visitation.
Donna failed to appear.
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In early November,
the Illinois court ordered Donna to personally appear before it
on November 6th in relation to the rule to show cause.
A process
server attempted to serve Donna in Kentucky with a copy of the
order and of the draft order that would be entered if she failed
to appear.
When Donna again failed to appear, the Illinois court
entered an order on November 6, 2003, appointing Donna’s sister,
Sharyn Jo Malone, as Guardian ad litem for Caroline and granted
her possession of Caroline to effectuate the terms of sibling
visitation.
Donna was given the option of purging this sanction
and reclaiming possession of Caroline by appearing before the
court on November 10th and presenting sufficient evidence to
demonstrate her future compliance with the terms of sibling
visitation.
A body attachment order was issued on November 7th.
On November 10th, the Illinois court entered another order
finding that Donna had failed to facilitate sibling visitation.
The Illinois court again appointed Sharyn Jo Malone as Guardian
ad litem for Caroline, and granted her possession of Caroline
from that date until November 12th to effectuate sibling
visitation.
The action in Kentucky commenced with the November 7,
2003, filing of Robert’s petition for enforcement of the
Illinois court’s orders concerning possession of Caroline as
well as his motion for immediate possession of Caroline.
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The
same day, Donna filed a domestic violence petition against
Robert for events occurring on November 3rd, when she claimed a
man hired by Robert attempted to remove Caroline from her
possession.
The circuit court entered an emergency protection
order, restraining Robert from any communication with Donna and
ordering him to remain at least two thousand feet away from her.
A hearing was held on the EPO on November 10th, at which time
there was much discussion as to whether the sibling visitation
order was contrary to Kentucky’s public policy.
The circuit
court then extended the EPO for two more weeks, and scheduled a
hearing date for December 1st.
Donna’s petition was later
dismissed and a subsequent temporary injunction was dissolved.
Donna eventually filed a response to Robert’s petition, in which
she indicated that she had requested and had attempted to make
different arrangements for visitation between Catherine and
Caroline.
Donna also indicated that she hoped to facilitate
conjoint counseling with Catherine in Kentucky.
Counsel for Robert appeared before the Illinois court
on November 12th, and which time the judge indicated that she had
received a telephone call from the circuit court’s clerk, who
indicated that Judge Stewart decided to not call her to discuss
the case.
Furthermore, counsel stated that the Kentucky court
was questioning Illinois’s jurisdiction regarding sibling
visitation.
The same day, the Illinois court entered an order
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stating that it was retaining original jurisdiction over the
cause, the parties and the minor children for purposes of
enforcing its orders, specifically sibling visitation.
conference was then scheduled for December 12th.
A status
The record does
not contain any further Illinois court documents.
On January 22, 2004, the circuit court entered an
order refusing to enforce the custody/visitation order of the
Illinois court, although all other provision of the Decree of
Dissolution were to remain in full force and effect.
Specifically, the circuit court stated that, “[Donna’s] minor
child, Caroline, is not a party to this action, is not a child
of the marriage of the parties, is a resident of the
Commonwealth of Kentucky and [Donna] (mother of Caroline)
objects to visitation.”
This appeal followed.
On appeal, Robert argues that the circuit court erred
in relying upon its four findings to refuse to enforce the
Illinois court’s order and in failing to communicate with the
Illinois court.
On the other hand, Donna argues that the
Illinois court lacked jurisdiction because the Illinois statute
providing for sibling visitation was declared unconstitutional
in 2002.
Because the Illinois court lacked jurisdiction,
neither Kentucky’s version of the Uniform Child Custody
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Jurisdiction Act (hereinafter “UCCJA”)1 nor the Parental
Kidnapping Act (hereinafter “PKPA”)2 would apply to require
enforcement of the visitation order.
Finally, Donna argues that
Robert did not have standing to petition the circuit court for
sibling visitation; rather, the petition should have been filed
in Catherine’s name.
Under Kentucky’s version of the UCCJA in effect at the
applicable time, KRS 403.540(1) provided:
A certified copy of a custody decree of
another state may be filed in the office of
the clerk of any Circuit Court of this
state. The clerk shall treat the decree in
the same manner as the custody decree of the
state. A custody decree so filed has the
same effect and shall be enforced in like
manner as a custody decree rendered by a
court of this state.
However, the controlling federal PKPA more specifically provides
as follows:
(a)
(b)
2
. . .
(c)
1
The appropriate authorities of every
State shall enforce according to its
terms . . . any custody determination
or visitation determination made
consistently with the provisions of
this section by a court of another
State.
A child custody or visitation
determination made by a court of a
State is consistent with the provision
of this section only if—
KRS 403.400, et seq.
28 U.S.C.A. § 1738A.
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(1)
such court has jurisdiction under
the law of such State; and
(2)
one of the following conditions is
met:
(A)
Such State (i) is the home
State of the child on the
date of the commencement of
the proceeding; or (ii) had
been the child’s home State
within six months before the
date of the commencement of
the proceeding and the child
is absent from such State
because of his removal or
retention by a contestant or
for other reasons, and a
contestant continues to live
in such State;
(B)
(i) it appears that no other
State would have
jurisdiction under
subparagraph (A), and (ii)
it is in the best interest
of the child that a court of
such State assume
jurisdiction because (I) the
child and his parents, or
the child and at least one
contestant, have a
significant connection with
such State other than mere
physical presence in such
State, and (II) there is
available in such State
substantial evidence
concerning the child’s
present or future care,
protection, training, and
personal relationships;
(C)
the child is physically
present in such State and
(i) the child has been
abandoned, or (ii) it is
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necessary in an emergency to
protect the child because
the child, a sibling, or
parent of the child has been
subjected to or threatened
with mistreatment or abuse;
(D)
(E)
(d)
(i) it appears that no other
state would have
jurisdiction under
subparagraph (A), (B), (C),
or (E), or another State has
declined to exercise
jurisdiction on the ground
that the State whose
jurisdiction is in issue is
the more appropriate forum
to determine the custody or
visitation of the child, and
(ii) it is in the best
interest of the child that
such court assume
jurisdiction; or
the court has continuing
jurisdiction pursuant to
subsection (d) of this
section.
The jurisdiction of a court of a State
which has made a child custody or
visitation determination consistently
with the provisions of this section
continues as long as the requirement of
subsection (c)(1) of this section
continues to be met and such State
remains the residence of the child or
of any contestant.
At the outset, we agree with Robert that the circuit
court’s findings in relation to the denial of the petition were
misplaced.
But the ruling was nonetheless correct.
First, we
agree with Donna that neither the UCCJA nor the PKPA applies
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because the Illinois court did not have jurisdiction over
Caroline, who was not a child of the marriage.
Had 750 ILCS
5/607, the Illinois statute that provided for grandparent,
great-grandparent and sibling visitation, not been declared
unconstitutional,3 Illinois could arguably have had jurisdiction
over Caroline regarding sibling visitation.
However, that
statute was declared unconstitutional prior to both the entry of
the agreed order providing for sibling visitation and the decree
of dissolution, which incorporated the agreed order.
This is
not to say that Illinois is precluded from enforcing the agreed
order and the portion of the decree incorporating that order, as
Donna stated in her brief.
We are merely holding that Kentucky
is not required by either the version of the UCCJA in effect at
the time or the PKPA to enforce sibling visitation or the order
requiring Donna to turn over Caroline to a Guardian ad litem.
We also agree with Donna that Robert did not have
standing to petition the circuit court for enforcement of the
sibling visitation order under the PKPA or the UCCJA.
Robert
does not meet the definition of “contestant” under either the
PKPA or Kentucky’s version of the UCCJA.
The PKPA defines a
“contestant” as “a person, including a parent or grandparent,
3
Wickham v. Byrne, 199 Ill.2d 309, 769 N.E.2d 1, 263 Ill.Dec. 799 (2002);
Schweigert v. Schweigert, 201 Ill.2d 52, 772 N.E.2d 299, 265 Ill.Dec. 191
(2002).
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who claims a right to custody or visitation of a child.”4
Similarly, the UCCJA defines “contestant” in KRS 403.410(1) as
“a person, including a parent, who claims a right to custody or
visitation rights with respect to a child.”
Robert is not
Caroline’s parent, and the agreed order specifically provided
for visitation between half-siblings, Catherine and Caroline,
without providing any visitation for Robert.
Therefore, he
cannot claim a right to visitation and has no standing to seek
enforcement of such an order.
Rather, the petition should
properly have been brought in Catherine’s name because she is
the only person, other than Caroline, with a true interest in
the enforcement of sibling visitation.
Finally, we agree with
Donna’s argument that Robert’s reliance upon Stevens v. Stevens5
and Harvey v. McGuire6 is misplaced.
Neither case involved the
enforcement of an out-of-state court order, while both involved
the financial support of a child of the parties, in which the
parent filing the action would have an interest.
For the foregoing reasons, the order of the Spencer
Circuit Court declining to enforce the sibling visitation order
of Cook County, Illinois is affirmed.
ALL CONCUR.
4
5
6
28 U.S.C.A. § 1738A(b)(2).
798 S.W.2d 136 (Ky. 1990).
635 S.W.2d 8 (Ky.App. 1982).
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BRIEF FOR APPELLANT:
Elisè Givhan Spainhour
John E. Spainhour
Shepherdsville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Melanie Straw-Boone
Louisville, KY
Richard Revell
Anchorage, KY
ORAL ARGUMENT FOR APPELLANT:
Elisè Givhan Spainhour
Richard Revell
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